/ Diario Financiero article: Pro-consumer reform, a new paradigm

January 4, 2022

Francisca Barrientos Camus
Of Counsel Alessandri Abogados
Director of the Alberto Hurtado University (UAH) Private Law Department

Published on Wednesday, December 29, 2021 in Diario Financiero.

The project known as pro-consumer, now Law No. 21,398, dated December 24, 2021, which establishes measures to encourage consumer protection, contemplates a series of rules that, read in an integrated manner, lead to infer that we are facing a new way of understanding the practical application of the consumer protection system.

It constitutes a new model, a change of paradigm of what until now we knew as consumer law, which has as a consequence an impact on the way of relating with the authority and the judicial appreciation. In addition, all supplier companies will have to face new challenges in terms of adaptation and adjustment of their processes.

If it is taken into consideration that all consumer regulations must “always” be construed in favor of consumers, there is an immediate need to examine contracts, in which ambiguous and non-transparent clauses and a new ground of abusiveness related to the termination of contracts will also have to be considered. All of the above has an impact on Sernac’s auditing, information requirements, negotiation and litigation processes. And certainly in the appreciation of the local and civil police judiciary, according to the type of consumer interest.

It also seems important to consider that, from now on, “the rights of all consumers are those enshrined in laws, regulations and other rules containing provisions relating to the protection of their rights” (article 3, paragraph 3). With this wording it is clear that all laws, regulations and “other regulations” are (it is imperative) qualified as consumer rights.

This obliges bodies, agencies and superintendencies to duly coordinate with Sernac, judges to be aware of all “sectorial” regulations when ruling on consumer cases and companies to conceive that financial, telecommunications, basic consumer services, transport, trade and many other laws are now consumer rights. In other words, inalienable rights in favor of the weaker party in this asymmetrical relationship, qualified as public order.

And obviously it is possible to anticipate that many conflicts will arise with respect to those laws, regulations and other rules that in the light of consumer law would conflict with certain principles of this branch of protection (e.g. Cencosud case, commissions issue and regulation of the banking and financial institutions authority).

In short, in the light of this legal reform, it is necessary to conceive and recognize this paradigm shift, which transforms what we understood so far the practical application of the consumer protection system, the role of Sernac and the judiciary; and as far as companies are concerned, their challenge will be to adapt to this new model.